In a brief Order issued on December 5, 2016, in U.S. House of Representatives v. Burwell, the U.S. Court of Appeals for the D.C. Circuit granted the motion filed by the U.S. House of Representatives (House) seeking to put the lawsuit challenging the Affordable Care Act’s (ACA’s) cost-sharing subsidies on hold until the Trump administration takes over.  In granting the stay, the court also directed the parties to file motions to govern further proceedings for the case by February 21, 2017.  The Order was issued by the three judge panel hearing the case, Judges Henderson, Tatel and Srinivasan.  Judge Henderson was appointed by President George W. Bush, Judge Tatel by President Clinton and Judge Srinivasan by President Obama.

As we have discussed in prior posts, the House is asking the court to bar the issuance of cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges. If the lower court decision agreeing with the House position is affirmed, one of the central features of the ACA making insurance and healthcare coverage affordable to millions of Americans would be removed.

In a motion filed after the November election, the House asked the court to put the case on hold to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter.

What lies in store for the ACA is being closely watched.  Few programs have been as controversial, have had such broad impact and great consequence.  The new administration, Congress and the many stakeholders will be debating and seeking to influence future policy directions.  The details of what is broadly described by terms such as repeal, repeal and replace, repeal and delay – will determine the future of healthcare for years to come.

To update our recent post, “Exchange Players File ACA Lawsuits Against CMS,” two new suits were filed by Qualified Health Plan (QHP) issuers selling coverage on the Affordable Care Act (ACA) exchanges. As described in our earlier post, for 2014, QHP issuers paid a total of $362 million in risk corridors charges to the government and asked for payments from the program of $2.87 billion. As a result, the Department of Health and Human Services (HHS) only paid 12.6 percent of the amounts owed. Regarding the remaining two years of the three-year risk corridors program, HHS told issuers that it would not know the total loss or gain for the program until the fall of 2017, and that in the event of a shortfall HHS will explore other sources of funding for risk corridors payments, subject to the availability of appropriations.

The two new lawsuits are described below:

1. Blue Cross Blue Shield of North Carolina

In one case, Blue Cross Blue Shield of North Carolina (BCBSNC) filed suit in the U.S. Court of Federal Claims seeking payments under the risk corridors program, one of the three premium rate stabilization programs, known as the 3Rs, created by the ACA.

BCBSNC claims that the federal government’s failure to make full risk corridors payments breaches the QHP contracts between BCBSNC and the federal government and is also a “taking” in violation of the U.S. Constitution. BCBSNC is seeking in excess of $147 million, less the partial payments made by the government, representing the amount of risk corridor payments owed to BCBSNC for 2014. The company is also asking the court to order the government to make full risk corridor payments for 2015 and 2016. The case was brought under the Tucker Act, which provides a cause of action for claims for damages over $10,000 against the United States.

BCBSNC asserts that the promise of financial risk sharing through the risk corridors program was a significant factor in its decision to become a QHP and to participate in the ACA exchanges. The company notes that it had contractually committed to participate in the exchanges when the government announced that it would implement the risk corridors program in a budget neutral, rather than fully funded, manner. The company argues that there are no provisions in the ACA limiting the government’s obligation to make full risk corridor payments owed to QHPs. BCBSNC also refers to statements in which the government, through HHS, acknowledged its obligation to make risk corridor payments. While Congress specifically targeted risk corridors payment obligations in appropriations bills that prohibited the use of federal money to fund risk corridors, the insurer claims that the failure to appropriate funds does not defeat the obligation that is still in the law to make risk corridor payments in full.

2. Moda Health Plan, Inc.

The second case was filed by Moda Health Plan, Inc. (Moda), an insurer operating in the Pacific Northwest and providing coverage in Alaska, Oregon, and Washington. Moda also filed its suit in the U.S. Court of Federal Claims and makes similar allegations. Moda is asking for risk corridors payment of approximately $89 million for its 2014 QHPs and $101 million for its 2015 QHPs. Moda also claims that the government breached its statutory and contractual obligation to make full risk corridors payments by paying out only $11 million of the amount that Moda is owed for 2014 and not paying any of its risk corridors obligations for 2015.

Moda claims that rates for QHP products were set based on the law’s provisions. Moda also points to other policy changes, such as HHS’s extension of its transitional policy, allowing individuals to stay on certain plans without ACA required benefits, as keeping healthier individuals on existing plans and making the QHP risk pool more expensive to cover.

Moda asserts that the failure to pay the full amount of the risk corridors payments has limited Moda’s ability to sell ACA plans in Alaska and Oregon. Regulators in those states will only allow Moda Health to continue to operate if it raises private capital to replace the loss the of risk corridors payments due in 2014 and 2015. Moda announced it has raised sufficient capital to continue to operate in Oregon for 2016 and 2017, but it will not be offering individual coverage in Alaska for 2017, where it was one of only two insurers offering coverage.

We will continue to update our posts following developments in these cases and additional lawsuits that may be filed by other insurers.

The Affordable Care Act (ACA) has been the impetus for extensive litigation since it was enacted in 2010. The Supreme Court has heard oral argument in four cases, and scores of other cases have been filed in the lower courts. Many of the challenges have come from individuals and groups ideologically or otherwise opposed to the controversial law, seeking to have it fully repealed or at least significantly narrowed. Some recent lawsuits, however, have been filed by the issuers of the qualified health plans (QHPs) that were fully on board with the ACA by offering individual and group coverage on the health insurance exchanges.

The first of the cases was filed by an insolvent Consumer Operated and Oriented Plan, or CO-OP, from Oregon, Health Republic Insurance Company of Oregon (HRIO) on February 24, 2016, in the U.S. Court of Federal Claims. The case, a putative class action, alleges that the government had no right to reduce Risk Corridors program payments owed to QHPs authorized to sell insurance on the federal exchanges. The putative class in HRIO’s suit would include all issuers who did not receive the full amounts they were owed under the Risk Corridors program, which HRIO estimates as totaling $5 billion.

The Risk Corridors program is one of the so-called 3Rs programs established to provide market stability in the first few years of the exchanges. Risk Corridors, along with the Risk Adjustment and Reinsurance programs, was designed to protect insurers from oversized losses anticipated as a result of the uncertainty inherent in the expanded health insurance market.

The Risk Corridors program is a temporary measure designed to limit QHPs’ gains and losses in the first three years of the exchanges. The program shifts money from QHPs with lower than expected losses to QHPs with losses exceeding certain benchmarks. Because QHP losses overall were larger than the amounts paid into the program by profitable QHPs and because Congress did not appropriate additional funds to cover the QHPs’ losses, the federal agency responsible for administering the 3Rs programs, the Centers for Medicare and Medicaid Services (CMS) announced that it would only pay 12.6% of the $2.87 billion owed QHPs for 2014. CMS said that it would make-up the shortfall in future years as funds become available.

Some less well-financed QHPs, including HRIO, were depending on receiving millions of dollars more from the 3Rs programs than they actually received and needed those funds for their continued viability. HRIO, in its lawsuit, claims that the money could have allowed it to continue operating. HRIO’s efforts to collect Risk Corridors funds is to help it proceed through its liquidation and pay its creditors, including healthcare providers such as physicians, hospitals and other health professionals.

A second lawsuit was filed by CoOportunity Health, another ACA CO-OP that operated in Iowa and Nebraska, before becoming insolvent. The Iowa insurance commissioner handling the CoOpportunity liquidation filed a lawsuit against the federal government in federal district court on May 3, 2016, alleging that the government is improperly withholding approximately $60 million in payments owed to the CO-OP, $20 million for Iowa and $40 million for Nebraska, as well as an additional $130 million in Risk Corridors payments. The Iowa/Nebraska suit alleges that by withholding amounts the government owes to CoOpportunity, CMS is improperly seeking to get a preferred position with regard to other creditors of the failed company. CoOpportunity argues that the government’s actions in withholding payment owed the CO-OP are in violation of state and federal law.

The most recent suit was filed on May 17, 2016, by Highmark, Inc., which owns and is affiliated with several Blue Cross and Blue Shield-related entities. Highmark filed its lawsuit in the U.S. Court of Federal Claims, asserting that it is owed nearly $223 million in Risk Corridors payments for 2014, and will be owed an additional $500 million in such payments for 2015. Despite heavy losses, Highmark has said it is committed to staying in the ACA market and believes its lawsuit is necessary to require the government to honor its obligations.

With three suits filed already in 2016, it remains to be seen how these cases will be handled and whether similar lawsuits will follow. The government has yet to file its formal responses to the complaints so how the government will respond is not yet known.

We will continue to track these cases, so look for updates on our blog.


The market for acquisition of medical practices by private equity firms continues to grow. Worldwide, nearly $30 billion was invested in healthcare in 2014 by private equity funds in the form of healthcare buyout deals. I recently offered commentary on private equity deals for medical practices for an article published April 4, 2016, on the physicians website Physician’s Money Digest. In the article, I discuss what’s driving this growth, including how changing healthcare payment models at the government program level toward value-based care is helping to generate interest from private equity firms.

To read the article, click here.